plaintiffs in an action to restrain defendants | road, was a nullity. It was made by the direcfrom taking any steps to enforce a certain tax tors, and never submitted to the stockholders. voted in aid of the Dubuque & Northwestern Morawetz, Priv. Corp. §§ 510, 511, 512; Railway Company, and to cancel the said tax Chicago City R. Co. v. Allerton, 85 U. S. 18 on the tax lists of Dubuque County. Reversed. Wall. 233 (21 L. ed. 902). At the first hearing of this case the judgment of the district court was affirmed. Thereafter a petition for rehearing was granted and the case was reargued in January, 1889. The facts are fully stated in the opinion. Messrs. Fouke & Lyon and Lusk & Bunn, for appellants: The right of the company to the tax was vested before April 9, 1884, when the Aid Law was repcaled, and was not affected by such repeal. Burges v. Mabin, 70 Iowa, 633. The vote, with the expenditure of money and commencement of work in reliance upon the vote, constituted a complete and binding contract which was protected by the Constitution of the United States, and it was impossible for the Legislature to destroy its obligation. Dubuque v. Illinois Cent. R. Co. 39 Iowa, 58; Fish v. Jefferson Police Jury, 116 U. S. 131 (29 L. ed. 587); Moultrie Co. v. Rockingham Sav. Bank, 92 U. S. 631 (23 L. ed. 631). In Chicago, R. I. & P. R. Co. v. Grinnell, 51 Iowa, 482, the court said: "The survey of the route and location of the line of the railroad is a part of the work of construction." Sioux City & D. M. R. Co. v. Chicago, M. & St. P. R. Co. 27 Fed. Rep. 774. The sale of the railroad by the Dubuque Company did not affect its right to the tax. The contract of May 5, 1885, alienating the tions unless otherwise provided by statute. See Louisville, N. A. & C. R. Co. v. Boney, 3 L. R. A. 437, note, 117 Ind. 501. A railroad company formed by the consolidation of two companies succeeds to all the rights of each of the corporations of which it is composed, and may compromise and settle a claim against one of them, and sustain an action to enforce the settlement. Paine v. Lake Erie & L. R. Co. 31 Ind. 283. The mere consolidation, however, does not have the effect to transfer the unexercised right of a constituent company, although the consolidation merges the franchises and privileges of each constituent. State v. Garroutte, 67 Mo. 445; Green Co. v. Conness, 109 U. S. 104 (27 L. ed. 872). So the privilege on a subscription does not pass to the consolidated company in Missouri since the new Constitution took effect. Wagner v. Meety, 69 Mo. 150. Where a railway company subsequently consolidates with another company under a new name and transfers its property to the new company subject to all charges, liens and equities, such new company is under obligations to complete the contract made by the original company. Union Pac. R. Co. v. McAlpine, 129 U. S. 305 (32 L. ed. 673). Under the Missouri Act to authorize the consolidation of railroad companies with companies in adjoining States, the consolidated company is entitled to the same privileges that the domestic company was entitled to at the time the consolidation took place. Livingston Co. v. First Nat. Bank, 128 U. S. 102 (32 L. ed. 359). Directors have no authority to sell and dispose of the property of the corporation essential to the carrying on of its business. Penobscot & K. R. Co. v. Dunn, 39 Me. 587; Bedford R. Co. v. Bowser, 48 Pa. 29; Burke v. Smith, 83 U. S. 16 Wall. 395 (21 L. ed. 363); White Mountains R. Co. v. Eastman, 34 N. H. 124; Metropolitan E. R. Co. v. Manhattan R. Co. 15 Am. & Eng. R. R. Cas. 92 and note. If the general laws under which a railroad company is organized provide that it may consolidate with other companies, a subscrip tion for shares in the company is not rescinded by a consolidation. The shareholders of each of the original companies become shareholders of the consolidated company. Morawetz, Priv. Corp. § 951; 1 Wood, Railway Law, 39; Nugent v. Putnam Co. 86 U. S. 19 Wall. 248 (22 L. ed. 88); Scotland Co. v. Thomas, 94 U. S. 689 (24 L. ed. 219); East Lincoln v. Davenport, 94 U. S. 801 (24 L. ed. 322); Wilson v. Salamanca, 99 U. S. 499 (25 L. ed. 330); Menasha v. Hazard, 102 U. S. 95 (26 L. ed. 85); New Buffalo Twp. v. Cambria Iron Co. 105 U. S. 76 (26 L. ed. 1025); Bates Co. v. Winters, 112 U. S. 325 (28 L. ed. 744); Atchison, C. & P. R. Co. v. Phillips Co. 25 Kan. 261, 272. The consolidation did not exonerate the original stockholders of the companies from their liability to pay their subscriptions, nor release the township from its subscription. | ration to make the subscription and issue its bonds after such constitutional provision goes into effect, where the Legislature had already authorized it to do so. People v. Logan Co. 63 Ill. 374. Such constitutional provisions are wholly prospective. Calhoun Co. v. Galbraith, 99 U. S. 214 (25 L. ed. 410); Henry Co. v. Nicolay, 95 U. S. 619 (24 L. ed. 394); Cass Co. v. Gillett, 100 U. S. 585 (25 L. ed. 585); Nicolay v. St. Clair Co. 3 Dill. 163; Callaway Co. v. Foster, 93 U. S. 567 (23 L. ed. 911); Huidekoper v. Dallas Co. 3 Dill. 171; Macon Co. v. Shores, 97 U. S. 272 (24 L. ed. 889); Louisiana City v. Taylor, 105 U. S. 454 (26 L. ed. 1133); Schuyler Co. v. Thomas, 98 U. S. 169 (25 L. ed. 88); State v. Clark, 23 Minn. 422; Scotland Co. v. Thomas, 94 U. S. 682 (24 L. ed. 219); 1 Wood, Railway Law, 318. Consolidation of railroad companies does not avoid a subscription to the stock of one of the old companies when such consolidation was authorized by law at the time the subscriptions were made. Bates Co. v. Winters, 112 U. S. 325 (28 L. ed. 744); East Lincoln v. Davenport, 94 U. S. 801 (24 L. ed. 322); Henry Co. v. Nicolay, supra; New Buffalo Twp. v. Cambria Iron Co. 105 U. S. 73 (26 L. ed. 1024); Chickaming Twp. v. Carpenter, 106 U. S. 663 (27 L. ed. 307). Nor will consolidation in such a case destroy the power of a municipal corporation to make a subscription which it was authorized to make to oue of the old companies. The new company succeeds to the right to receive the subscription. Scotland Co. v. Thomas, and Schuyler Co. v. Thomas, supra; Wilson v. Salamanca Twp. 99 U. S. 499 (25 L. ed. 330); Empire Twp. v. Darlington, 101 U. S. 87 (25 L. ed. Municipal subscription in aid of railroad con- 878); Menasha v. Hazard, 102 U. S. 81 (26 L. ed. 83). struction. A change in the Constitution of the State of Illinois is made which prohibits such subscription. The change does not affect the right of the corpo If two or more railway companies consolidate before the subscriptions to the stock thereof have been paid, under authority obtained subsequent to the subscriptions, or if by the consolida Nugent v. Putnam Co. supra, and cases cited; | of stock were enabled to avail themselves of Cork & Y. R. Co. v. Paterson, 37 Eng. L. & Eq. the rights given by statute to sell to or consol398; Nixon v. Brownlow, 3 Hurlst. & N. 686; idate with connecting lines without defeating Sparrow v. Evansville & C. R. Co. 7 Ind. 369; their right to the taxes, provided they tendered Bish v. Johnson, 21 Ind. 299; Hanna v. Cin- to the taxpayers stock of the purchasing or cinnati & Ft. W. R. Co. 20 Ind. 30; Sprague consolidated company. v. Illinois River R. Co. 19 Ill. 174; Banet v. Alton & S. R. Co. 13 Ill. 504. In Sparrow v. Evansville & C. R. Co. 7 Ind. 369, the court says: "The contract, having been made under the law authorizing consolidation, must be presumed to have been made with reference to it, and cannot, therefore, be impaired because the law is a part of the contract.' Hanna v. Cincinnati & Ft. W. R. Co. 20 Ind. 30. See Burlington & M. R. R. Co. v. White, 5 Iowa, 409; Washington College v. Duke, 14 Iowa, 14; Union Hotel Co. v. Hersee, 79 N. Y. 458. The repeal of the law of chapter 159, Laws of 20th General Assembly, did not affect the company's right to the box, because, under $ 45 of the Code, the right is preserved. Burges v. Mabin, 70 Iowa, 633; Barthel v. Meader, 72 Iowa, 125. See Cooley, Const. Lim. *294, and cases cited; Ogden v. Saunders, 25 U. S. 12 Wheat. 213, 259 (6 L. ed. 606). The vote with the expenditure of money and commencement of work in reliance upon it constitute a contract. Burges v. Mabin, 70 Iowa, 633. By section 1302 railroad companies receiving aid or having made other contracts for delivery tion the object and purposes of the original enter-, prise are radically changed, it is held that such subscriptions to the stock, whether by municipal corporations or individuals, are thereby discharged. Martin v. Junction R. Co. 12 Ind. 605; Harshman v. Bates Co. 92 U. S. 569 (23 L. ed. 747); McCray v. Junction R. Co. 9 Ind. 358; 3 Wood, Railway Law, 1685. A municipal corporation has no power to acquiesce in a radical change in the original plan which so far changes the enterprise that the vote in favor of the subscription does not apply to the new enterprise. Ferguson v. Meredith, 68 U. S. 1 Wall. 40 (17 L. ed. 608); State v. Nemaha Co. 10 Kan. 569; McMahan v. Morrison, 16 Ind. 172. This rule, however, does not apply where authority to consolidate existed when the subscription was made or the vote was taken. Mansfield, C. & L. M. R. Co. v. Brown, 26 Ohio St. 223; Sparrow v. Evansville & C. R. Co. 7 Ind. 369. Bonds in aid of railroad construction; power to issue. The power to issue bonds to one corporation will not authorize their issuance to another corporation, and this rule applies to a consolidated company (Harshman v. Bates Co. 92 U. S. 569 (23 L. ed. 747); Sherrard v. Lafayette Co. 3 Dill. 236; Marsh v. Fulton Co. 77 U. S. 10 Wall. 676 (19 L. ed. 1040); and the fact that subsequent to the making the subscription and before issue of the bonds the company entitled to them transferred its franchise does not alter the case. Henry Co. v. Nicolay, 95 U. S. 619 (24 L. ed. 394); Scotland Co. v. Thomas, 94 U. S. 682 (24 L. ed. 219). Chicago, M. & St. P. R. Co. v. Shea, 67 Iowa, 733. The tax was properly extended on the basis of the assessment of 1883, the year in which it was voted. Parsons v. Childs, 36 Iowa, 110. When taxes are erroneously assessed the remedy of a party is by application to the board of equalization for a correction of the error, and such remedy is exclusive. Powers v. Bowman, 53 Iowa, 361; Macklot v. Davenport, 17 Iowa, 379; Nugent v. Bates, 51 Iowa, 77. Plaintiff cannot claim relief from an irregular assessment which works him no prejudice. Litchfield v. Hamilton Co. 40 Iowa, 68. Equity will not interfere to prevent the collection of taxes authorized by law. Cedar Rapids & M. R. R. Co. v. Carroll Co. 41 Iowa, 174; Sioux City & St. P. R. Co. v. Osceola Co. 45 Iowa, 177; Patterson v. Baumer, 43 Iowa, 482; Iowa Railroad Land Co. v. Carrol Co. 39 Iowa, 154; lowa Railroad Land Co. v. Sac Co. 39 Iowa, 128; Conway v. Younkin, 28 Iowa, 297; Cook Co. v. Chicago, B. & Q. R. Co. 35 Ill. 460; Vieley v. Thompson, 44:11. 9. The proceedings to be stayed must be inequi dation. Nugent v. Putnam Co. 86 U. S. 19 Wal 241 (22 L. ed. 83); New Buffalo Twp. v. Cambria Iron Co. 105 U. S. 73 (26 L. ed. 1024); Chickaming v. Carpenter, 106 U. S. 663 (27 L. ed. 307). If it appears that the new company is substantially the same as the old one, the corporation may vote to issue the bonds to the new company. Society for Savings v. New London, 29 Conn. 174; Com. v. Pittsburgh, 41 Pa. 278; Empire Twp. v. Darlington, 101 U. S. 87 (25 L. ed. 878); Lewis v. Clarendon, 5 Dill. 329; East Lincoln v. Davenport, 94 U. S. 801 (24 L. ed. 322); Ill. Midland R. Co. v. Barnett, 85 Ill. 313. And even the sale of the road before its completion, by the corporation in whose favor the tax was voted, with a reservation that the purchaser shall complete the roadbed and collect the tax, will not defeat its right to the tax after the road is completed. Muscatine Western R. Co. v. Horton; 38 Iowa, 33. But where the corporation is essentially different from that designated by the vote or petition, as where it has a different name and route or terminus, the subscription is void. Rochester, N. & P. R. Co. v. Cuyler, 7 Lans. (N. Y.) 431. In order to invalidate a subscription by a town, etc., the consolidation must work such a fundamental change in the purpose of the corporation as would operate to release individual subscribers to the stock. Lynch v. Eastern, L. & M. R. Co. 57 Wis. 430; 1 Wood, Railway Law, 316. Where a county having lawful authority issued its bonds in payment of its subscription to a railroad company, it was estopped from denying the validity of the bonds in the hands of a bona fide holder, to whom they were transferred for value by the consolidated company. Tipton Co. v. Rogers Locomotive & Mach. Works, 103 U. S. 523 (26 L. ed. 340); Scotland Co. v. Thomas, 94 U. S. 682 (24 L. ed. 219); Henry Co. v. Nicolay, 95 U. S. 619 (24 L. ed. So where the laws of the State allow the consoli- 394); Menasha v. Hazard, 102 U. S. 81 (26 L. ed. 83). It is otherwise where, before the subscription and bonds were voted, the company was authorized to consolidate with companies constructing connecting lines. Menasha v. Hazard, 102 U. S. 81 (26 L. ed. 83); Wilson v. Salamanca Twp. 99 U. S. 499 (25 L. ed. 330); Mt. Vernon v. Hovey, 52 Ind. 563. table and unjust, and such that it will be against conscience to allow them to go on. Stokes v. Knarr, 11 Wis. 389; Äbleman v. Roth, 12 Wis. 91. The will of the people in voting the tax must be sustained, if possible, and be favorably construed. Technical defects or irregularities are to be disregarded by the court. Cooley, Taxn. 337; Irwin v. Lowe, 89 Ind. 540. Parsons v. Childs, 36 Iowa, 108, is a case nearly akin to the case at bar. See also Harwood v. Brownell, 48 Iowa, 657; Perrin v. Benson, 49 Iowa, 325; Conway v. Younkin, 28 Iowa, 295; Milwaukee & St. P. R. Co. v. Kossuth Co. 41 Iowa, 57; Easton v. Savery, 44 Iowa, 654; Snell v. Fort Dodge, 45 Iowa, 564. The valuation for the year the tax was voted furnishes the basis for the assessment, no matter when made. Richards v. Wapello Co. 48 Iowa, 507; Code, § 812; Snell v. Fort Dodge, 45 Iowa, 567, cited, Albany & B. Mining Co. v. Auditor General, 37 Mich. 391. Messrs. W. J. Cantillon and William Graham for appellees. Granger, J., delivered the opinion of the court: This case is before us on rehearing, an opinion having been filed, affirming the judgment of the district court. At the former hearing the case was disposed of under the rulings in Manning v. Mathews, 66 Iowa, 675; Blunt v. Carpenter, 68 Iowa, 265, and Barthel v. Meader, 72 Iowa, 125,-the rule in such cases being that alienation of the road before completion and after taxes voted in aid of its construction works a forfeiture of the tax. Defendant urges upon the attention of the court the consideration that this case is distinguishable from those cited by its facts as to the alleged sale. In the cases referred to there was, after the voting of the tax, either an absolute sale of the road, or what amounted to a lease in perpetuity, and, for all practical purposes to the taxpayer, an absolute sale. The holdings in such cases are based on the theory that the payment of the tax is upon contract that the taxpayer shall have an interest in the property he helped to create; and that for the company to voluntarily place the road beyond its power to give such interest avoids the obligation for payment. stitute a single line of road, and their corporate interests should be consolidated. This agreement by the Dubuque Company received the assent of its board of directors, but not of the stockholders. There is no doubt in our minds but that from May 5, 1885, it was the purpose of the officers of the Dubuque Company to make the consolidation when the fifty miles of road was completed, which was in fact done. On the 13th of November, 1886, and just after the completion of the fifty miles of road by the Dubuque Company, the Dubuque Company and the Minnesota & Northwestern Railroad Company entered into two contracts: (1) one by the terms of which the contract of May 5, 1885, was abrogated; and (2) one by the terms of which the two lines of road were united, and the two companies consolidated in such manner that the consolidated line came under the control and management of the Minnesota & Northwestern Railroad Company. In fact, for the purpose of this case it may be said to have been an absolute sale of the road to the managing company. In the contract of May 5, 1885, there was no agreement by which the purchasing company was to issue the certificates for stock due on payment of the taxes voted. In the contract of November 13, 1886, there was an agreement that such taxpayers should have the stock in the roads as consolidated. 1. These facts are sufficiently full for the presentation of our views on this question. As we understand, it is the claim of appellees that the mere fact of the sale of the road operates to avoid the tax, regardless of the fact of whether or not the taxpayer would be entitled to his certificates of stock from the purchasing company owning the line aided by the tax. The right of railroad companies to transfer their roads and franchises is so well understood, and so clearly provided for by statute, that no citation in that respect is necessary. If appellant's theory, that a company aided by such a tax may before the completion of its road transfer it to another company, and still preserve its right to the tax, has support in the statute, it is by virtue of section 1302 of the Code, which reads as follows: "Where any railway company shall be organized under a corporate name, and shall have made contracts for payments to it upon delivery of stock in such company, and shall, subsequent to such contracts, have changed their corporate name, or when the real ownership in the property, rights, powers and franchises have passed, legally or equitably, into any other company, no such contracts shall be enforced in law or equity, until tender or delivery of stock in such last-named corporation or company." After a careful consideration of the law and the arguments we are convinced that this case is distinguishable from the others as to its facts, and controlled by a different rule of law. The aid to the defendant company was voted December 20, 1883. On the 5th of May, 1885, This section has not heretofore received juthereafter the defendant company, which for dicial construction, and we must express a reconvenience we will denominate (as it is in the gret that the legislative purpose is not more record) "The Dubuque Company," entered in-apparent than it seems to be. It, however, is to two agreements,- -one with the Minnesota Loan & Debenture Company, by the terms of which the latter company was to construct for the Dubuque Company its line of road for fifty miles; and one with the Minnesota & Northwestern Railroad Company, by the terms of which, after the Dubuque Company should complete its fifty miles of road, the lines of the two companies should be joined so as to con clearly apparent that cases are contemplated where payments are to be made to the company upon delivery of stock in the company; and it is equally clear that it contemplates that the ownership of the property, rights, powers and franchises may legally pass to another company while such contracts for payments exist; but such contracts are not enforceable without tender or delivery of stock in the company having the ownership of the property, etc. To our minds two queries are presented: (1) Does the section embrace obligations for payment of taxes voted as in this case? and (2) Does it embrace voluntary conveyances by one company to another? As to the first, the letter of the law makes it applicable to contracts for payments upon delivery of stock. Counsel in this case agree, and we have held, that the obligation of the taxpayer in such cases arises on contract, and the obligation for payment is dependent upon the delivery of stock. Acts 20th Gen. Assem. chap. 159. The language of the law as to contracts is general, and we see no reason for excluding from its operation this class of contracts. As to the second query, the language of the law is also very general. It speaks of cases where the ownership legally passes to another company, It is sufficiently broad to include voluntary and involuntary conveyances. At the first reading there was something of a hesitancy in giving to the section so broad a meaning; but the rules for construction, and our reflections, lead us to the conviction that nothing less was designed. In argument no reasons are suggested against such a construction, and none whatever occur to us. With this view of the law, it is plain that the case is distinguishable by its facts from those on which the former opinion is based. The parties must be held to a knowledge of the law at the time the tax was voted, and that the company had the right to transfer the road, and that thereafter the obligation for payment would depend upon the readiness of the purchasing company to deliver the stock. We do not leave out of view in this case the fact that by the agreement of May 5, 1885, there was no provision in the contract of sale for the purchasing company delivering the stock. There are many doubts surrounding the valid ity of that sale, but with our views we think it unnecessary to determine them. We may say it was a valid sale. Looking to the same section, we do not find a requirement that in making the sale the delivery of this stock shall be provided for; and it is of no concern to the taxpayer whether such a provision is made as between the companies or not. The law exempts the taxpayer from payment unless the stock is forthcoming. By the contract of sale, November 13, 1886, provision is made for the stock in the consolidated line, and the evidence clearly shows that it is of greater market value than it would be in the former road. Considered in the light of a pecuniary advantage, the transfer was greatly to the interest of taxpayers, and hence they are without any special claims to equitable consideration. 2. The tax was voted December 20, 1883. The levy was made September 30, 1884, after the levy of the taxes for that year for state and county purposes, the levy for state and county purposes being made on the assessment of 1884. That for the railroad tax was levied on the assessment for 1883, and appellees insist that the tax is void for that reason. It is appellees' contention that, the board of supervisors having used the assessment for 1883 for the levy of taxes in September of that year, and the tax list having passed to the treasurer for collection, the assessment had served its full purpose, and that it could not be made the basis of a levy in 1884. After a township has voted aid to a railroad company, the law makes it the duty of the township clerk or the clerk of the election to certify the facts to the county auditor, who shall at once cause such certificate to be recorded in the office of the county recorder. And then follows this provision: "When such certificates shall have been made and recorded, the board of supervisors of the county shall, at the time of levying the ordinary taxes next following, levy such taxes as are voted under the provisions of this Act as shown by said certificate, and cause the same to be placed on the tax lists of the proper township, incorporated city or town, indicating in their order thereupon when and in what proportion the same are to be collected, and upon what conditions the same are to be paid to the railroad companies; a certified copy of which said order shall accompany the tax lists. Said taxes shall be collected at the time or times specified in said order, in the same manner, and be subject to the same penalties for nonpayment, after they are collectible, as other taxes, or as may be stated in the petition asking said election." 20th Gen. Assem. chap. 159, § 3. Acts The foregoing is our only statutory guide as to assessment on which to make the levy. We do not accept the theory of appellees that, the levy of taxes for 1883 for general purposes having been made on the assessment for that year, the same assessment could not be used for another levy; that is, we all see no reason why, after the levy is made, the same assessment may not be used for another levy, if the law so designed. The assessment for the year which the law really contemplates is but the instrument or means for measuring or ascertaining the amount of the individual's indebtedness to the company, as he is to pay 5 per cent of the assessed valuation of his property. The extent of such an obligation may be measured by the assessment of any year the law may designate or the parties agree upon, and the fact that the assessment has once been used would make no difference. We say this much only in answer to a claim that an assessment can only be used as the basis of a levy for a single year. Appellants' theory is that, the tax being voted in December, 1883, the law contemplates a levy on the assessment for that year; that both the 'company and the taxpayer then know what the assessment is, and contract with knowledge of the amount to be paid by the one and received by the other; while, if the levy is to be on a future assessment, they make their contract in ignorance of so important a consideration. If this thought is to be a controlling one, we experience a difficulty in fixing a time to serve as a dividing line between levies on past or future assessments. In the case of Parsons v. Childs, 36 Iowa, 108, the court had under consideration the question of which of two assessments was the prop er one for the levy where taxes had been voted to aid the construction of a railroad. In that case the aid was voted March 30, 1869, and the court held that the levy should be on the assessment of that year, and used this language: “In view of the provisions of our statute, as above mentioned, and numerous others, it is very man- | what point the road must be completed, before ifest that the tax voted and sought to be enjoined in this case was regularly and legally to be levied upon the assessment of 1869, the year in which it was voted." There is much doubt of a purpose in that case to hold that in all cases of voting such aid the levy must be made on the assessment of the calendar year in which it was voted. In fact, there are some words used indicating that the holding is only applicable to that case. We are not without apprehension of danger in fixing upon any definite time as applicable to all such cases. However, a majority of this court are of the opinion that, in view of the time the tax was voted, with other facts in this case, the levy of the tax on the assessment for 1883 is not erroneous, and that the claim of appellees in that respect cannot avail to defeat the tax. Justice Rothrock and the writer of this opinion hold to the view that the assessment for 1884 is the one on which the levy should have been made, but think the plaintiffs are not entitled to relief on that account. There was an assessment for 1884, and we think before equity will restrain the collection of the tax because of the levy on the wrong assessment, the plaintiffs must show prejudice resulting from the error; as that, in consequence of the levy being on the wrong assessment, a greater tax is imposed. If the amount of the tax is less or equal, there can certainly be no just grounds of complaint. It is not like a case where there had been no assessment for the year 1884 to enable the plaintiffs to know as to their prejudice, and allege the fact, if true. 3. The articles of incorporation of the Dubuque Company state that the objects of incorporation are to construct, operate and maintain a railroad from Dubuque in a western and northwestern direction in Iowa, Minnesota and Dakota, to a junction with the Northern Pacific. It is urged that the line as now formed, and extended from Dubuque to St. Paul, is such a departure from the original undertaking as to avoid the tax. The petition signed by the citizens of the township in which the vote was ordered, and the notice for the election, conform to the statutory requirements in stating the amount of work to be done on the road, and when and where it must be done, and to the tax was collectible, and these provisions have been fully complied with. The record of the case satisfies us that at the time the tax was voted the general course was designed to be north and northwest, but the extent of the line, and its northern terminus, were matters which circumstances in the future must determine. It was well known that if the enterprise proved a success it must have financial aid from other quarters than Dubuque, and it must have been understood that changes might be necessitated in securing the needful assistance. The record does not disclose that the tax was voted upon condition that the road was to be constructed into any other State or Territory. It was known that the incorporators at the organization of the company had as objective points Minnesota and Dakota, and the Northern Pacific. The reaching of such points was not a condition of payment, and we are unable to say that the road may not yet be so constructed. We do not think in this respect there is such a deviation from the conditions under which the tax was voted as to excuse the payment. 4. This tax, as before stated, was voted on the 20th of December, 1883, and the law under which it was voted was repealed April 9, 1884, and appellees' say that fact avoids the tax. The case of Burges v. Mabin, 70 Iowa, 633, is decisive of the law of this branch of the case. There is some question as to the amount of money and time expended after the vote and before the repeal of the law. But we think it was unmistakably sufficient to support the contract and avoid the operation of the repealing Statute. It is sufficient to say that after the tax was voted the company engaged as actively in the preparation for the work of construction as it could well do at that season of the year, and with the opening spring prosecuted its work with energy, and complied with the contract on its part. We think, also, that the expenditures made and the work done were in faith of the tax voted. With these views we reach the conclusion, on rehearing of the case, that the petition is without merit, and that it should be dismissed. Reversed. Second petition for rehearing denied. PENNSYLVANIA SUPREME COURT. WESTMORELAND & CAMBRIA NATURAL GAS CO., Appt., V. Ira DE WITT et al. (....Pa.....) 1. The possession of the soil by the owner for the purposes of tillage, etc., gives him no possession of gas under the surface as against parties to whom he has leased the land for gas purposes, and who remain in possession of a well which gives them the sole control of the gas so far as its utilization is concerned, and the sole possession of which it is capable, apart from the land. 2. A lease of a certain tract of land for gas purposes providing that no wells shall be drilled within 300 feet of a certain building, is as much a lease of that part of the territory as of any other part, subject to the provision as to locating wells upon it. 3. An injunction may be granted to prevent wrongfully drilling a gas well in territory leased to complainant. 4. A stipulation that a lease shall be void if any payments remain unpaid for thirty days does not make a forfeiture for delay in payment absolute and self operative without action by either party. 5. A forfeiture will not be enforced under a stipulation that a lease shall be null and void for default of any payment for thirty days, merely because of failure for more than thirty days to pay part of a certain payment due, where both parties had disregarded the strict |